Category: reason

When a cop killed a man in Brooklyn Center, Minnesota, yesterday, the officer had reportedly pulled him over for hanging air fresheners on his rearview mirror. It wasn’t just the latest high-profile case of abusive policing—it was important reminder of the ill effects of criminalizing the most trivial behaviors.

Daunte Wright, 20, died after the officer allegedly mistook her gun for a taser, according to Brooklyn Center Police Chief Tim Gannon. After pulling Wright over for violating a Minnesota law that prohibits drivers from hanging objects—a rosary, fuzzy dice, an air freshener—from their mirrors, police noticed there was a warrant out for Wright’s arrest. Upon trying to detain him, Wright re-entered his car, at which point officers struggled with him. One deployed and fired her gun.

“Holy shit,” she says on the body camera footage. “I shot him!”

Although Gannon did not specify what the warrant pertained to, The New York Times reports that Wright failed to show up for a court appearance on two misdemeanor charges, one for carrying a pistol without a permit and the other for fleeing officers last summer.

News of the shooting prompted both peaceful protests and rioting in Brooklyn Center, a suburb of Minneapolis; a slew of businesses in the area were destroyed. Police in riot gear sought to break up crowds with tear gas and flash bang grenades.

Not long ago, that same area was engulfed in riots over the death of George Floyd, who was arrested after allegedly using a fake $20 bill to buy cigarettes. Officer Derek Chauvin, who knelt on Floyd’s neck for nearly nine minutes last May, is now on trial for murder. The Minneapolis police chief recently noted under oath that Chauvin flouted department protocol in doing so, with expert medical witnesses testifying that Floyd died of obstructed breathing.

The outcry over Floyd’s death thrust several previously seldom-discussed issues to the forefront of the national dialogue. Take qualified immunity, the legal doctrine that makes it difficult for victims of government malfeasance to hold state actors to account in civil court. Not long ago, talk of qualified immunity was confined to scholarly panels and magazines like this one. Now it’s being seriously discussed in legislative bodies across the country, with New Mexico recently becoming the third state to roll back the doctrine.

But one topic that still hasn’t received enough attention is the consequences of overcriminalization. Police accountability, training, and transparency are certainly important: If an officer cannot distinguish between a firearm and a taser, we have a problem. But it’s also a problem that cops could pull Wright over for this reason in the first place.

Eric Garner, one of the most publicized victims of police brutality, died after former New York City police officer Daniel Pantaleo choked him for the crime of selling loose cigarettes. Other victims aren’t as well-known. Like Ramon Lopez, who died after Phoenix police officers chased, tackled, and pinned him on searing hot asphalt because someone had called 911 to report him for loitering in a parking lot, “jumping around,” “looking at people’s cars,” and wearing “ripped pants.”

Serious criminal justice reform should include an effort to criminalize fewer things. We need to slash away the laws that make virtually everyone a criminal—and that lead to so many unpleasant, and sometimes deadly, confrontations with law enforcement. Daunte Wright would be alive today had he not dared to hang an air freshener in the wrong spot.

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Baret Lepejian has taken the wild west theme of his restaurant in Burbank, California, to heart. For months he has refused to comply with pandemic restrictions, even in the face of mounting sanctions.

In December, Lepejian reopened his family-run Tin Horn Flats Saloon for outdoor dining as a self-described “peaceful protest” against Gov. Gavin Newsom’s Regional Stay at Home order, which required restaurants to cease onsite dining for close to two months.

“I’m going to lose my business anyway….So fuck it,” he told Eater at the time.

Lepejian was hardly alone in refusing to comply with Newsom’s regional stay-at-home order. Across the state, business owners have said they’d keep their doors open, whole towns have refused to comply with the directive, and sheriff’s departments have said they wouldn’t enforce it.

What makes the Tin Horn Flats case unusual is the degree to which both the Lepejians and the city have been willing to go to war.

Almost immediately after the restaurant reopened, the Los Angeles County Department of Public Health suspended Tin Horn Flats’ health permit. Lepejian and his family kept operating anyway. The county then performed close to 30 public health inspections at Tin Horn Flats over the ensuing month, documenting violations each time.

On January 25, Newsom lifted his regional-stay-home order, which allowed outdoor dining to resume statewide. Other state and local restrictions on indoor dining have since eased as the number of COVID-19 cases, hospitalizations, and deaths dropped considerably in Los Angeles. Today, restaurant dining rooms are allowed to operate at 50 percent countywide.

But that brought little relief to Tin Horn Flats. Two days after the stay-at-home order was lifted, Los Angeles County fully revoked the restaurant’s already-suspended health permit and required it to stay closed until it acquired another one. In late February, the Burbank city council revoked a conditional use permit the restaurant needed to operate.

Still it stayed open. Within minutes of the city council’s decision, Tin Horn Flats’ social media accounts blared a message: “We WILL NOT COMPLY.”

The situation has only escalated since then. Both Los Angeles County and the city of Burbank have sued Lepejian and his company, Barfly Inc., through which his family owns Tin Horn Flats.

In mid-March, a Los Angeles Superior Court gave the city the ability to shut off power to Tin Horn Flats, which it did. The restaurant then fired up a generator. A few days after that, the city padlocked the restaurant’s doors. Lucas Lepejian, Berat’s 20-year-old son, sawed the padlocks off. A day later, the Burbank police arrested him. He’s since been arrested two more times, once after being spotted leaving the business and again after removing city-placed sandbags in front of the restaurant’s entrances.

The city has continued to barricade Tin Horn Flats with wooden boards, caution tape, and metal fencing.

“It basically looks like the siege of Fallujah over there—over outdoor dining,” the Lepejians’ attorney, Mark Geragos, told the Los Angeles Times. Geragos has also sued Los Angeles County over pandemic restrictions placed on his own restaurant.

The conflict has proven divisive in the community. A Friday city council session attracted a storm of angry public comments, with the sentiments seemingly split evenly between people who wanted the city to leave Tin Horn Flats alone and people who thought more measures should be taken to keep it closed.

“I support the opening of Tinhorn Flats. If there are currently any lawsuits against Tin Horn Flats, I would ask that you drop them. Businesses have been through a lot this past year and it’s time to support them and come together now,” said one woman.

“The way [the Tin Horn Flats owners] been acting the last month during the pandemic, it shows me there’s a blatant disregard for public health,” said another commenter. “They’re breaking down the chains that the city’s putting up. That’s not fair for the other restaurants that waited out the covid thing.”

Meanwhile, a picture posted to the restaurant’s Instagram shows their building closed off by city-installed fencing while protestors draped in American flags grill outside.

Lepejians probably haven’t helped their cause by continually thumbing their noses at city officials. Other restaurants with more temporary or calibrated protests haven’t attracted the same level of negative attention. That said, with all pandemic-related restrictions on businesses set to sunset by mid-June, the city’s war on the restaurant seems to be far more about throwing its weight around than protecting public health.

If nothing else, the case shows how much force is required to enforce business closures when businesses choose resistance over compliance.

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Maryland lawmakers defied Republican Gov. Larry Hogan over the weekend and eliminated the state’s Law Enforcement Officers’ Bill of Rights (LEOBR). Since the ’70s, that law has made it harder to investigate and fire bad cops.

When police unions pushed through such laws, which still exist in 15 other states, they argued that the legislation would make sure cops receive due process when they’re accused of misconduct. But in reality, these laws give officers special protections that shield them during investigations. They mandate a “cooling off” period before a cop can be interviewed after a citizen files a complaint, giving accused officers time to plan out how they’ll respond to questioning—a privilege not granted to most people accused of criminal behavior. They make it harder (or impossible) to access police discipline records. And they mandate that the panels that determine the fate of officers accused of misconduct be made up of fellow police officers. They forbid independent investigations of cops, and they overrule the judgment of police chiefs.

Maryland was the first state to pass a LEOBR in 1972, and now it’s the first to get rid of one. House Bill 670 replaces that police board with an independent Police Accountability Board in each county; it will be staffed by civilians, not police officers. They will recommend disciplinary action. A police chief will have the authority to impose additional discipline, but he or she can’t water down the board’s recommendations. The accused officer is entitled to a trial if he or she wants to appeal the discipline, and the trial board will consist of a judge, a civilian, and a police officer.

In other words, the new system includes due process but it’s not a kind that the police union can control.

The House and Senate passed the bill in early April, but Hogan vetoed it on Friday, along with two other police reform bills. (The others would mandate that police wear body cameras, would require the use of force to be “necessary and proportional” to the situation, and would limit the use of no-knock warrants to daylight hours and to times when the officers show they’re necessary to avoid destruction of evidence and to protect their own lives and safety.) The legislature overrode all three vetoes on Saturday.

In Hogan’s veto message, he claims that the bills “would undermine the goal that I believe we share of building transparent, accountable, and effective law enforcement institutions and instead further erode police morale, community relationships, and public confidence.” Given the public outrage that inspired these reforms, does Hogan really expect people to believe that these bills would undermine “community relationships and public confidence”? A compromise legislation as it is, the restrictions on no-knock warrants have enough exceptions for “exigent circumstances” that it’s not even actually clear that it will lead to fewer raids.

Incidentally, the cases that provoked those protests—the police slayings of Breonna Taylor in Kentucky and George Floyd in Minnesota—both took place in states with LEOBR protections.

Walter Olson, a contributing editor at Reason, serves as a co-chair of Maryland’s Citizens Redistricting Commission; he’s also a critic of LEOBRs. He tells Reason he’s glad that lawmakers defied Hogan’s veto. But he’s not sure a civilian panel will produce as much change as people are hoping for. He thinks that chiefs and sheriffs should be making the calls and being held accountable for those decisions.

“There will still be a hearing panel, just differently made up, and so forth,” he tells Reason. “If you take the view that police chiefs or sheriffs should have straightforward authority to address officer misconduct, and then should be politically accountable to voters for those decisions—well, this doesn’t get us there.”

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Prosecutors argue that former Minneapolis police officer Derek Chauvin killed George Floyd by pinning him facedown to the pavement for nine and a half minutes, which made it impossible for Floyd to get the oxygen he needed to stay alive. Although that account was reinforced last week by detailed testimony from Chicago pulmonologist Martin Tobin, it is complicated by Hennepin County Chief Medical Examiner Andrew Baker’s autopsy report, which said nothing about asphyxia, instead attributing Floyd’s death to “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” But as Baker’s testimony in Chauvin’s murder trial on Friday demonstrated, this distinction matters less than Chauvin’s defenders suggest.

Baker agreed with the defense that Floyd’s heart disease and drug use, both of which were mentioned in the autopsy report, contributed to his death. But Baker said those factors were not “direct causes,” and he reiterated his conclusion that Floyd would have survived the encounter, which happened after he was arrested for using a counterfeit $20 bill to buy cigarettes on May 25, if police had handled the situation differently. “I would still classify it as a homicide today,” Baker said.

Baker said Floyd had an enlarged heart due to hypertension, meaning his heart would have required extra oxygen, and substantially narrowed coronary arteries, meaning they had “a limited ability to deliver” that oxygen to the heart. Floyd also had a low level of methamphetamine in his blood: 19 nanograms per milliliter, which prior testimony indicated is similar to what would be seen in someone who had taken a single prescribed dose of the drug. Without commenting specifically on how methamphetamine affected Floyd, Baker said, “My understanding is that methamphetamine is hard on the heart. It is going to increase heart rate. It is going to increase the work of the heart because it is a stimulant.”

But even allowing for those “contributing causes,” Baker said, his judgment remains that “law enforcement subdual, restraint, and neck compression” played a crucial role in Floyd’s death, which is why he classified it as a homicide. “We apply the term homicide when the actions of other people were involved in an individual’s death,” he explained.

Baker noted that “cardiopulmonary arrest” is “really just fancy medical lingo for ‘the heart and the lungs stopped’—no pulse, no breathing.” He said the phrase “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression” means that Floyd’s heart and lungs stopped functioning in that context. And that “top line” description, he noted, is “the most important thing that precipitated the death.”

In Baker’s view, the use of force against Floyd fatally interacted with his “very severe underlying heart disease.” Here is how Baker described what he thinks happened:

He has a heart that already needs more oxygen than a normal heart by virtue of its size, and it’s limited in its ability to step up, to provide more oxygen when there’s demand, because of the narrowing of his coronary arteries. Now, in the context of an altercation with other people that involves things like physical restraint, that involves things like being held to the ground, that involves things like the pain that you would incur from having your cheek up against the asphalt and an abrasion on your shoulder, those events are going to cause stress hormones to pour out into your body….That adrenaline is…going to ask your heart to beat faster. It’s going to ask your body for more oxygen so that you can get through that altercation. In my opinion, the law enforcement subdual, restraint, and the neck compression [were] just more than Mr. Floyd could take by virtue of those heart conditions.

As to whether breathing difficulty caused by the prolonged prone restraint made it even harder for Floyd to get the oxygen he needed, Baker said, “I would defer to a pulmonologist.” Tobin has exactly the sort of expertise to which Baker alluded, and he concluded that “Floyd died from a low level of oxygen” caused by obstructed breathing, which ultimately “caused his heart to stop.” Tobin said even a perfectly healthy person would have died in these circumstances.

Forensic pathologist Lindsey Thomas, who also testified on Friday, likewise attributed Floyd’s death to inadequate breathing. “Mr. Floyd was in a position, because of the subdual, restraint, and compression, where he was unable to get enough oxygen in to maintain his body functions,” she said.

In all of these accounts, Chauvin’s actions were the but-for cause of Floyd’s death. Whether Floyd died because he could not breathe, as he repeatedly complained while he was pinned to the pavement, or because his heart could not handle the stress of this “altercation,” as Baker suggests, the use of force was the crucial thing that killed him. Baker and the other medical experts agree on that point, even when they differ on the details.

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If you are on Clubhouse, join me, <a href=”https://freedomfest2017.sched.com/speaker/david_s_bernstein.6vdtzvu”>David Bernstein</a>, and <a href=”https://jewishjournal.com/commentary/334702/my-cheshbon-hanefesh-for-cowardice-in-the-face-of-wokeness/”>David Bernstein </a>for a discussion of freedom of expression and wokeness Monday 4/12 at 8:00 pm.

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